COMPARATIVE MODELS FOR TRANSITIONING FROM RELIGIOUS TO CIVIL MARRIAGE SYSTEMS

Abstract

Speaking in June 2008 at a symposium on constitutions and marriage at Bar-Ilan University School of Law, former Israeli Chief Justice Aharon Barak stated his opinion that the public discourse in Israel about marriage is very poor, and that the time has come for change. He also observed that Israeli family law is very complicated, and that the law is constantly in flux. Justice Barak noted that when it comes to family law in Israel, "you never wash in the same river twice." As Americans and outsiders, who are not experts on family law, we do not propose to describe this river in detail, nor do we propose to prescribe how it should be channeled or maintained. We come with the perspective of comparative law scholars whose primary work is in the area of law and religion. It is with the hope that we will not be mere meddlers, and with a desire to contribute in some small way to the public discourse, that we approach this complex area with a certain fear and trembling and a rather acute case of vertigo. This paper takes up Justice Barak's invitation to broaden the conversation about the need in Israel to transition from an exclusively religious model for marriage and divorce to a model that includes civil marriage and divorce. The paper will do this by engaging in a comparative analysis of other legal systems that have undergone a transition from religious to civil marriage. While legal outsiders such as us do not understand the complexities and nuances of Israeli family law, it may be possible to contribute in a modest way to the public discourse by focusing on comparative law and international human rights materials.